Is the Decisionator heading us toward a constitutional crisis?

Posted By: Peter DavidPosted On:

Bush has described himself as “the Decider” and now “the Decision Maker.” Kathleen folded that into “the Decisioner,” but Ariel then came up with one I like even better: The Decisionator.

But here’s my question: Is he really?

From my admittedly layman’s understanding of these things, the President serves as the instrument of Congress. Congress has the power to declare war (or, as was the case with Iraq, the power to abrogate that power, apparently) and the President, as the Commander-in-Chief or, if you will the Decisionator, then wages the war on Congress’s behalf.

What I’m a little unclear on is: Does Congress has the power to *un*declare war?

The Decisionator is determined to send in more troops, and Congress seems determined to voice its objections via a nonbinding resolution, which is kind of like parents setting a curfew and then enforcing it by announcing that they’re going to snore really loudly in protest when the kid breaks it. What I want to know is whether Congress has the power to say, “We’re done. We were told the United States was going to war for these reasons. These reasons no longer exist. The war is over. We’re pulling out,” and then inform the President that he no longer has Congressional authority to wage war, and that if he continues to do so, he will be impeached. In which case, does the Decisionator obey their will or does he tell them to go screw themselves, in which case we have a full blown constitutional crisis.

I’m no con law scholar. I honestly don’t have any idea. But it would be interesting in that it would be the second time in the last seven years that matters relating to George Bush suddenly send everyone scrambling to the constitution to see what should happen next.

PAD

177 comments on “Is the Decisionator heading us toward a constitutional crisis?”

  1. That’s the only thing I’ve found that’s close to a news source and I’ve never heard of truthout.com before. I have heard of one of the writers before. Nothing bad, so I just don’t know yet.

    The fact that one of the writers is Jason Leopold does not fill me with much confidence. I think he STILL claims that Karl Rove was indicted.

  2. Him I hadn’t really followed enough to remember. When I checked him out, amongst other places, here…

    http://en.wikipedia.org/wiki/Jason_Leopold

    I’m pretty much dropping that bit of info into the Black Hole. Between him and that Marc Ash fellow, that’s not really a rock solid type of record.

  3. Ðámņ.

    Molly Ivins passed away a few hours ago. Partisan? Caustic? Yeah. But often funny nonetheless.

  4. Yeah, that’s too bad. I disagreed with her more often than not but she knew the value of humor.

    Between her and Deb Orin I’m surprised at how some folks are able to keep working right up to the end and not give any indication of how bad things are. I knew Ivins was on her third bout with cancer but it wasn’t reflected in her writing.

    RIP.

  5. Well, we have another example of watching a democracy descend into a dictatorship: Venezuela.

    Chavez has basically been handed free reign to do whatever he wants. And, worse still, his people seem to be supporting it.

    So, it’s ridiculous to say that the same could *never* happen here. Unlikely, yes.

    As for the Aqua Teen Hunger Force stuff, a picture somebody took of one of those things is now my avatar on a number of forums (when I’ve never used avatars before; I love that show).

    But for all the stuff coming from Boston about how they’re going to go after whomever is responsible, they look awfully silly when it’s been said that those things have been around for a couple of weeks in TEN cities around the country, and apparently nobody thought anything of them until today.

  6. In looking for a CinC exception to the UCMJ, I found a majority of Supreme Court Justices going on record saying Bush approved an illegal war trial, and that the illegal war trial constituted a war crime under the Geneva Convention:

    4. The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949.

    C. Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan’s commission trial are illegal. The procedures governing such trials historically have been the same as those governing courts-martial. Although this uniformity principle is not inflexible and does not preclude all departures from courts-martial procedures, any such departure must be tailored to the exigency that necessitates it. That understanding is reflected in Art. 36(b), which provides that the procedural rules the President promulgates for courts-martial and military commissions alike must be “uniform insofar as practicable,” 10 U. S. C. §836(b). The “practicability” determination the President has made is insufficient to justify variances from the procedures governing courts-martial. The President here has determined, pursuant to the requirement of Art. 36(a), that it is impracticable to apply the rules and principles of law that govern “the trial of criminal cases in the United States district courts” to Hamdan’s commission. The President has not, however, made a similar official determination that it is impracticable to apply the rules for courts-martial.

    Just so you know, UCMJ Article 36 is titled “PRESIDENT MAY PRESCRIBE RULES.”

    As far as I can tell, 36.B. says trials must be uniform and reported to congress, 36.A. was given as the president’s excuse for violating 36.B., and the court rejected this excuse.

    The District Court granted habeas relief and stayed the commission’s proceedings, concluding that the President’s authority to establish military commissions extends only to offenders or offenses triable by such a commission under the law of war; that such law includes the Third Geneva Convention; that Hamdan is entitled to that Convention’s full protections until adjudged, under it, not to be a prisoner of war; and that, whether or not Hamdan is properly classified a prisoner of war, the commission convened to try him was established in violation of both the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §801 et seq., and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear. The D. C. Circuit reversed. Although it declined the Government’s invitation to abstain from considering Hamdan’s challenge, cf. Schlesinger v. Councilman, 420 U. S. 738 , the appeals court ruled, on the merits, that Hamdan was not entitled to relief because the Geneva Conventions are not judicially enforceable. The court also concluded that Ex parte Quirin, 317 U. S. 1 , foreclosed any separation-of-powers objection to the military commission’s jurisdiction, and that Hamdan’s trial before the commission would violate neither the UCMJ nor Armed Forces regulations implementing the Geneva Conventions.

    You are qualified for Geneva Convention protection until proven otherwise.

    Article 3 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12,1949, [1955 ] 6 U..S.T.3316,3318, T.I.A.S.No.3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law…

    By Act of Congress, moreover, violations of Common Article 3 are considered ‘war crimes,’ punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U.S.C. §2441. There should be no doubt, then, that Common Article 3 is part of the law of war as that term is used in §821.
    —Anthony Kennedy

    It isn’t as right as holding Bush responsible for the invasion, but for those of you saying a broken law should be cited before considering Bush impeachable, you’ve got 2 Supreme Court Justices saying a war crime was committed in violating UCMJ Art 36 — which is a presidential responsibility.

    Also, the Washington Post (15Jan07) agrees civilians are not inherently exempt from the UCMJ:

    Previously, civilians could be tried under the UCMJ only during a declared war.

    This is a more restrained application of the UCMJ on civilians than I thought, since the occupation of Afghanistan and Iraq don’t seem to apply — but the assertion that civilians are never subject to the UCMJ is wrong (and I still haven’t found that CinC exemption).

    The news story covers the expanded civilian scope of the UCMJ — to include Afghanistan and Iraq — written into a spending bill.

  7. In looking for a CinC exception to the UCMJ, I found a majority of Supreme Court Justices going on record saying Bush approved an illegal war trial, and that the illegal war trial constituted a war crime under the Geneva Convention:

    4. The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949.

    C. Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan’s commission trial are illegal. The procedures governing such trials historically have been the same as those governing courts-martial. Although this uniformity principle is not inflexible and does not preclude all departures from courts-martial procedures, any such departure must be tailored to the exigency that necessitates it. That understanding is reflected in Art. 36(b), which provides that the procedural rules the President promulgates for courts-martial and military commissions alike must be “uniform insofar as practicable,” 10 U. S. C. §836(b). The “practicability” determination the President has made is insufficient to justify variances from the procedures governing courts-martial. The President here has determined, pursuant to the requirement of Art. 36(a), that it is impracticable to apply the rules and principles of law that govern “the trial of criminal cases in the United States district courts” to Hamdan’s commission. The President has not, however, made a similar official determination that it is impracticable to apply the rules for courts-martial.

    Just so you know, UCMJ Article 36 is titled “PRESIDENT MAY PRESCRIBE RULES.”

    As far as I can tell, 36.B. says trials must be uniform and reported to congress, 36.A. was given as the president’s excuse for violating 36.B., and the court rejected this excuse.

    The District Court granted habeas relief and stayed the commission’s proceedings, concluding that the President’s authority to establish military commissions extends only to offenders or offenses triable by such a commission under the law of war; that such law includes the Third Geneva Convention; that Hamdan is entitled to that Convention’s full protections until adjudged, under it, not to be a prisoner of war; and that, whether or not Hamdan is properly classified a prisoner of war, the commission convened to try him was established in violation of both the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §801 et seq., and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear. The D. C. Circuit reversed. Although it declined the Government’s invitation to abstain from considering Hamdan’s challenge, cf. Schlesinger v. Councilman, 420 U. S. 738, the appeals court ruled, on the merits, that Hamdan was not entitled to relief because the Geneva Conventions are not judicially enforceable. The court also concluded that Ex parte Quirin, 317 U. S. 1 , foreclosed any separation-of-powers objection to the military commission’s jurisdiction, and that Hamdan’s trial before the commission would violate neither the UCMJ nor Armed Forces regulations implementing the Geneva Conventions.

    You are qualified for Geneva Convention protection until proven otherwise.

  8. Article 3 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12,1949, [1955 ] 6 U..S.T.3316,3318, T.I.A.S.No.3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law…

    By Act of Congress, moreover, violations of Common Article 3 are considered ‘war crimes,’ punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U.S.C. §2441. There should be no doubt, then, that Common Article 3 is part of the law of war as that term is used in §821.
    —Anthony Kennedy

    It isn’t as right as holding Bush responsible for the invasion, but for those of you saying a broken law should be cited before considering Bush impeachable, you’ve got 2 Supreme Court Justices saying a war crime was committed in violating UCMJ Art 36 — which is a presidential responsibility.

    Also, the Washington Post (15Jan07) agrees civilians are not inherently exempt from the UCMJ:

    Previously, civilians could be tried under the UCMJ only during a declared war.

    This is a more restrained application of the UCMJ on civilians than I thought, since the occupation of Afghanistan and Iraq don’t seem to apply — but the assertion that civilians are never subject to the UCMJ is wrong (and I still haven’t found that CinC exemption).

    The news story covers the expanded civilian scope of the UCMJ — to include Afghanistan and Iraq — written into a spending bill.

  9. The Aqua Teen Hunger Force thing is just plain bizarre. I can’t believe that a major media corporation would authorize such a promotion without clearing it with the city government first. That’s just stupid any time, but particularly in the post-9/11 era.

    I got Sirius for Christmas last month.

  10. NPR is excerpting Aqua Teen.

    It’s good to know the occupation of Iraq has narrowed Osama bin Laden’s window of opportunity to bomb the bridges of every major US city down to a measely couple of weeks.

  11. “Obviously the person who has to get over himself is the Lawyer™ who denies the plain English put in front of him.”

    Heh, I’m still laughing at that one. Legal reformers have been trying for decades to get laws writting in plain English. So far as I know…and judging from all the recent statues and regulations I’ve seen enacted over the past 10 years, it hasn’t taken.

    Word of advice. Never mention the “plain English” interpretation of a law to a lawyer again. Well, then again, if it’s an elderly, portly lawyer, and you with to kill him, go ahead. The fit of laughter he’ll be caught in just might do him in.

    I don’t know that anyone’s every claimed that the CinC, or any civilian, are always exempt from the UCMJ…just that there’s nothing about the office of president that makes the person holding that office inherantly subject to the UCMJ. As I read it, the intent of such provisions, like the on about people accompanying the military, is to make those people serving alongside the military subject to the UCMJ. I don’t think it litteraly means accompanying. Just by traveling along with a platoon doesn’t mean you’re subject to the UCMJ. If you take up arms and actually serve alongside them, then I’d say the UCMJ applies to you.

    Essentially, the president isn’t subject to the UCMJ just because he visits a base, or a carrier. Technically speaking, and by a “plain English” application, he’s accompanying them when he does these things. But not under the terms and spirit of the UCMJ.

    Now, when Bill Pullman’s president gets in an F-18 and flies off to fight aliens in Independance Day, he and all those other civilian pilots are taking military action alongside active members of the military. All those folks would be subject to the UCMJ.

  12. That’s just stupid any time, but particularly in the post-9/11 era.

    Probably, but the reaction out of Boston is just insane, talking about throwing everybody they can in jail and all that nonsense.

    10 cities had these things, and nobody reacted save in Boston. Makes you wonder if it’s something in the water or what.

    Either way, their stupidity with their reaction to this has given ATHF far more publicity than their actual ad campaign. What a surprise.

  13. True, but given how paranoid most major US city governments have become after 9/11, it was entirely predictable that at least one city would overreact the way that Boston did. That makes this decisions by Turner/TimeWarner all the more baffling. You’d think the world’s largest media conglomerate would have a legion of high-priced lawyers on staff to warn against stupid things like this.

    Don’t most cities have ordinances about advertizing displays?

  14. I agree that Boston has only itself to blame for this. Advertising goes up all the time. Recently, in our patrolled, gated parking lot exclusivey for Federal employees, someone walked in an put flyers on everyone’s car for some phone psychic. Security totally missed it.

    But no one freaked out and demanded her arrest, either. I don’t think there are any “no tresspassing” signs anywhere, but there are warnings that you’re entering a Federal facility, subject to search, etc.

    If Boston has some permitting requirements that were violated, fine the folks responsible. But to arrest people because the police freaked out? Or to present them with a bill for the OT? Please. If the terrorists have us seeing bombs in every ashcan, traschcan, mailbox, or new sign, and then arresting the people who put those things there, then the terrorists have well and truly beaten us.

  15. He’s a civilian, and the UCMJ only applies to members of the military….

    I don’t have to have had training in it, be subject to it, or even have read it prior to this debate to tell you, unequivocably, the office of the president is not subject to the jurisdiction of the UCMJ. Have you ever had a basic course on the Constitution, or basic American history?

    …the Washington Post (15Jan07) agrees civilians are not inherently exempt from the UCMJ:

    Previously, civilians could be tried under the UCMJ only during a declared war.

    I don’t know that anyone’s [ever] claimed that the CinC, or any civilian, are always exempt from the UCMJ…

    How well has that “A” in Basic American History™ served you, Counselorr?

  16. Almost, Mike, but no dice. Context is critical. My comment was in response to your assertion that the CinC was subject as a normal matter of course to the UCMJ. I don’t say he’s “never” subject to it. Just that he’s “not” subject to it in the context of our conversation.

    Under very specific facts, which I’ve already provided one fictional example of, the president, or any other civilian, can be subject to the UCMJ. Essentially when they are voluntarily serving a military function alongside active military units.

    I do wonder, however, how you justify your statements to the effect that the UCMJ is a higher standard than civilian criminal and civil law. I’ll admit I don’t know much about the UCMJ, or the military courts overall. What I do know is that they are different courts, not better, not worse, not universally more strict, nor universally more lenient, than public courts. You’ve repeatedly suggested that the private courts the president is normally subject to are held to a lower standard than the UCMJ. Is that just an opinion?

    By the way, I never had basic American history outside of what you get before you reach high school. I placed out of that requirement. I did, however, rate an A in Government, which studied the foundations of the Constitution. Oh, and there’s the whole Constitutional Law thing, which you can’t really do with any sense of meaning unless you study the founding of the country.

  17. “You’d think the world’s largest media conglomerate would have a legion of high-priced lawyers on staff to warn against stupid things like this.”

    Yeah, especially since this isn’t the first time this has happened in the last year. Didn’t we do this with an MI:3 add campaign on some magazine or newspaper vending machines? That should have popped up in their brains while they were mapping out this ad campaign. And wasn’t there also something with a subway station in the last couple of years?

    They also should have marked the things somehow. This may have been only the first part of an ad campaign so it may deserve a little benefit of the doubt, but, even having seen a few episodes of ATHF, was that really a good ad piece as-is? I mean, the first picture I saw of one of these ad pieces was Space Invaders. Yeah, I’m showing my age.

    Just a little extra something added to the front design of these things or a printed ownership tag by Turner on the front (not lit up so as not to interfere with the display itself) may have gone a long way towards avoiding this.

    Still, while nice to see what BPD can do in a crunch if needed, the overreaction was foolish. And the desire to jam up the two guys hired to put the things up with planting hoax devices (basically saying that they put up fake bombs with the intent to terrify) is just stupid. Fine them for the ads they placed in areas where you’re prohibited from posting such things, but, other then that, chill out.

    Bobb Alfred,

    I offer you the greatest gift I ever gave myself and then passed on to Bill Mulligan before you. It’s the Planet M shield. When you use it, if you use it, you acquire the ability to skip entire blog segments that start with:

    Posted by Mike at…

    and begin reading again at…

    Posted by (anyone else) at….

    You’ll find that you get less frustrated here and that the absence of knowledge of such posts will cause your faith in the overall intelligence of mankind as a species to slowly begin to regain its strength.

    Up to you.

  18. I agree that the BPD and the city government had overreacted to this case. But, as you noted this is not the first time someone had overreacted to a guerrilla marketing campaign. I can’t imagine that while they were coming up with this plan, no one in the marketing department raised a hand and said, “Can anyone just hang something from a bridge? Maybe we should check to see if you need a permit.”

  19. Den, I’m sure that person was laughed at, and made to buy the next round of coffee and donuts.

  20. Mike, the UCMJ doesn’t apply to the president because he’s not a member of the military. He’s the commander, yes, through the constitution, but he’s not a member, period. Not active, not a volunteer, not anything that’s subject to the UCMJ. He’s a Federal Employee, pretty much the same as me, only I didn’t have to get voted into my job. He’s a civilian, and the UCMJ only applies to members of the military….

    Mike, are you a lawyer? ‘Cause I am. I’m trained and experienced in reading legal text an interpreting it. And let me tell you, the UCMJ is legal text. I don’t have to have had training in it, be subject to it, or even have read it prior to this debate to tell you, unequivocably, the office of the president is not subject to the jurisdiction of the UCMJ. Have you ever had a basic course on the Constitution, or basic American history?

    Almost, Mike, but no dice. Context is critical. My comment was in response to your assertion that the CinC was subject as a normal matter of course to the UCMJ. I don’t say he’s “never” subject to it. Just that he’s “not” subject to it in the context of our conversation.

    only, adj.

    1. unquestionably the best : PEERLESS
      • alone in a class or category : SOLE <the only one left> <the only known species>
      • having no brother or sister <an only child>
    3. FEW <one of the only areas not yet explored>

    unequivocal, adj.

    1. leaving no doubt : CLEAR, UNAMBIGUOUS
    2. UNQUESTIONABLE

    You used words that allowed for no exceptions, and you said for yourself you made up your mind without reading any of the UCMJ the president was exempt from it.

    If we aren’t supposed to go by anything you say — what are you doing here?

    But when he starts stating things that are not supported by fact, and he presents them as something he not only knows [unequivocally], but the rest of us are idiots for questioning him, I have a hard time letting that lie. I’m not much for bullies, and when one opens up the opportunity to knock him down a peg or two, it’s hard for me to resist.

    I’m not asking anyone to take my word for anything.

    Who’s the bully, the guy not asking you to take his word for anything, or the guy denying he posted what we can all plainly see he posted?

  21. Hey, I can play that way, too.

    “I’m not asking anyone to take my word for anything.”

    Mike, the text of the UCMJ doesn’t support your view. In the absence of textual or factual support for your opinion, all we’re left with is your word.

    I’ll grant you this, plainly read my words did leave no room for exceptions. But I’ll stick to the meaning of my words. Unless you’re a member of the military, however that association is created, the UCMJ does not apply to you. Even the section you site, Section 802 Article 2 a(10), supports me, and not you. That section reads “(10) In time of war, persons serving with or accompanying an armed force in the field.” Persons serving with or accompanying an armed force in the field are defacto members of the military. Maybe you don’t get that from a “plain English” reading of the UCMJ, but from the entire Section 802 Article 2, it’s clear that the intent is for the UCMJ to extend only to members of the military, and those otherwise (such as prisoners) subject to the jurisdiction of the UCMJ.

    Just for clarification, I didn’t reach this conclusion without reading the UCMJ. What I said was that I hadn’t read it prior to this debate. In fact, I did read the entire Section 802 Article 2 prior to making a post about this.

    Look, Mike, it’s sometimes fun to spar with you, but at some point it just loses its appeal. If this were being scored as a debate, the judges would have called it on account of the Mercy Rule. I’ve refuted your contention that the president is subjec to the UCMJ. While you haven’t really continued to press that point, you’ve not conceeded, either. At best, the closest you have come to winning any issues is pinning me as saying that the UCMJ doesn’t apply to civilians, ever. For the record, I didn’t say that, and I would say that anyone subject to the UCMJ is a defacto member of the military anyway, just that the provisions had to be drafted so broadly to ensure that they covered any contingency for how any individual wound up serving with the military.

  22. “I can’t imagine that while they were coming up with this plan, no one in the marketing department raised a hand…”

    Yeah, I didn’t write it as clearly as I could have. I was talking about the marketing people when I pointed out that the past oopsy should have popped into somebody’s brain while coming up with this.

    Those guys should get a bigger pop upside the head the the two guys in Boston.

  23. Here, I’ll prove how paranoid I am…for those that don’t already know.

    Seeing as how these things were sitting around for two weeks, and no one seemed to notice or car…I bet you it was the Ad folk themselves that called the police, in order to generate some free publicity. They probably called up and said “I think I saw a bomb.”

  24. Mike, the text of the UCMJ doesn’t support your view. In the absence of textual or factual support for your opinion, all we’re left with is your word.

    A. The following persons are subject to [the UCMJ]: 1. Members of a regular component of the armed forces…

    As far as the president is a person, and congress gives the president command over all military, yes, UCMJ qualification A.1. includes the president.

    Then I found the WaPo article and took it at its word:

    Previously, civilians could be tried under the UCMJ only during a declared war.

    We aren’t in a declared war as understood by this statement. And I’m not going to presume the changes in applying the UCMJ mentioned in the article make the president more vulnerable to prosecution.

    See? I’m not asking anyone to take my word for anything.

    I’ve refuted your contention that the president is subjec to the UCMJ.

    You did no such thing. You said, “He’s a civilian, and the UCMJ only applies to members of the military.” According to the WaPo quote, you were Wrong,™ and Wrong™ doesn’t refute anything.

  26. Here’s a better question – Why, given the amount of comics-related subjects to comment about on this site currently, do you choose to find a thread that petered out two weeks ago and make such an immature statement about a situation that is serious? What flavor of Kool-Aid is your favorite?

  27. Why, given the amount of comics-related subjects to comment about on this site currently, do you choose to find a thread that petered out two weeks ago and make such an immature statement about a situation that is serious

    Because I didn’t want to post something unrelated to those topics in those threads?

    Considering how often threads are posted here about Bush and his policies, actions, etc, it seemed totally appropriate to at least post it in a Bush-related thread.

    It’s too bad you have a problem with that.

    But if you like, next time I’ll just post it in the first available thread.

    Bush is an idiot, and he’s trying to start ANOTHER war. Yet, you get pissy over my supposed immaturity.

    Maybe you should take it out on the Chimp in Chief, instead of those offering valid criticism.

    The war in Iraq is a total failure. So what does Bush do? He goes on and on about Iran.

    Brilliant. Bloody fûçkìņg brilliant.

    What flavor of Kool-Aid is your favorite?

    Take the rod that’s shoved up your ášš and give it a good yank. It’s obviously interfering with your higher brain functions.

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